Did Trump ‘engage in insurrection’? All eyes on the court.

When the U.S. Supreme Court hears oral argument next week in a case that could see Donald Trump disqualified from the 2024 presidential election, the justices will consider a number of complex and politically fraught questions.

The case, Trump v. Anderson, concerns whether Mr. Trump is barred from running by Section 3 of the 14th Amendment. The Civil War-era provision holds that anyone who “engages in insurrection” against the United States is disqualified from public office, and last month the Colorado Supreme Court ruled that the provision applies to Mr. Trump.

The case is unprecedented, and it raises a host of complex and rarely litigated questions. Among those questions, two stand out as more politically sensitive than any others: Do the events on and around Jan. 6, 2021, when hundreds of Trump supporters stormed the U.S. Capitol while Congress certified the 2020 election results, constitute an “insurrection” per Section 3? And did Mr. Trump “engage in” that insurrection?

These are the kinds of questions the Supreme Court tends to try to avoid. There are several issues on which the justices could decide the case, so they could still choose to avoid it. Even then, experts say, the court’s silence will be deafening.

What “engaging in insurrection” means 

There is little in Section 3, or elsewhere in the Constitution, clarifying what “engages in insurrection” means. The question is also a fact-specific one, and in the U.S. court system, district courts are considered the main finders of fact. That can be a challenge in election cases, which are often heard on expedited timelines, as this case was. 

In the Anderson case, the district court held a five-day trial that included 15 witnesses and 96 exhibits, with another two weeks for parties to submit other findings of fact and legal arguments. Much of that time was spent analyzing events leading up to and during Jan. 6, including President Trump’s fiery speech to protesters just two hours before they breached the Capitol and his repeated false claims before and during that day that he had won the 2020 election.

But in a dissent to the Colorado Supreme Court decision, Justice Brian Boatright questioned if the district court had enough time and resources to give the case the full evidentiary hearings it deserved. 

A Section 3 case, he wrote, “presents uniquely complex questions that exceed the adjudicative competence of [the code’s] expedited procedures.”

Process questions aside, while the “engaged in insurrection” question is a complex and politically volatile one, it is ultimately a yes/no question.

On the “no” side, some legal experts argue that Jan. 6 doesn’t constitute an insurrection because it wasn’t long enough or violent enough. Seven people died during or as a result of that attack. Some scholars also claim that Mr. Trump did not “engage” in their actions. They point to the facts that he spoke before the protest turned violent and he simply watched the violence unfold from the White House. That, they argue, doesn’t justify disqualifying him from the ballot.

Furthermore, they add, the president’s relative inaction that day – including waiting almost three hours to tell supporters to peacefully disband, and choosing to not deploy additional federal law enforcement to the Capitol – doesn’t amount to engaging in insurrection.

“I think he was reveling in what he saw,” says Lawrence Lessig, a professor at Harvard Law School in Cambridge, Massachusetts. ”But that’s different from him having an intent to bring about insurrection and act on that intent, even if the intent was doing nothing.” 

A history of insurrection

In countering these arguments, other legal experts point first to the history of Section 3. For a Supreme Court that places value on history and the original meaning of the Constitution, these arguments could prove compelling.

When the 14th Amendment was ratified, Supreme Court rulings and other legal opinions had coalesced around a four-part definition for “insurrection.” It required an “assemblage” of people resisting “any federal law” by “force or violence,” and had to have “a public purpose.” 

“It would be incorrect for the [justices] to say that Trump did not engage in an insurrection, as ‘engage in insurrection’ was understood” in 1868, says Mark Graber, a professor at the University of Maryland School of Law who believes that Mr. Trump should be disqualified.

Historically, Section 3 has also been consistently applied to people who haven’t been first convicted of insurrection. The drafters viewed the provision as an additional, civil law consequence of engaging in insurrection, separate from other legal punishments.

“Section 3 is a civil remedy,” says Gerard Magliocca, a professor at the Indiana University School of Law. If Mr. Trump is disqualified, he adds, “you’re not putting him in jail; you’re not taking his property away. ... He’s not in office, [so] you’re not taking his office away.”

More importantly, he argues, Section 3 doesn’t disenfranchise voters. “You can’t take away someone’s right to vote unless you convict them of a felony,” he says. But “saying a particular person they want to vote for is ineligible [isn’t] the same as taking away their right to vote.”

Shifting the focus 

Next week, the nine justices may probe attorneys on these questions. But the “engaged in insurrection” issue is both fact-dependent and politically fraught. When deciding the case, the court may focus on other issues.

The court “isn’t going to want to review factual claims about what happened on Jan. 6,” says Professor Lessig. “Instead, you’re going to see them try to decide the case in a way that’s based solely on the law.”

But even if the justices base their ruling on other issues – such as whether Section 3 is self-executing or covers the presidency – some experts say they will have to make some statement about Jan. 6.

The case has drawn comparisons to other monumental cases in Supreme Court history. These cases combine serious legal implications with issues that divided the country. With Brown v. Board of Education in 1954, it was segregation. With United States v. Nixon in 1974, it was Watergate.

With Trump v. Anderson in 2024, it will be Jan. 6 and the false claim that Mr. Trump won the 2020 election. The justices dismissed some challenges to the 2020 presidential election results. So this will be the high court’s first case concerning the subsequent attack on the Capitol.

“The rhetoric in these opinions is going to be very important,’’ says Professor Magliocca.